Pamela Mnyandu v. County of Los Angeles ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAMELA TINKY MNYANDU, No. 18-55846
Plaintiff-Appellant, D.C. No. 2:14-cv-06485-DSF-FFM
v.
MEMORANDUM*
COUNTY OF LOS ANGELES; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
Pamela Tinky Mnyandu appeals pro se from the district court’s summary
judgment in her 42 U.S.C. § 1983 action alleging malicious prosecution. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, Conlon v. United States,
474 F.3d 616, 621 (9th Cir. 2007), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court properly granted summary judgment on Mnyandu’s claims
against defendants Sedgwick Claims Management Services, Inc., Lunsway, and
Rose because Mnyandu failed to raise a genuine dispute of material fact as to
whether these defendants instigated Mnyandu’s criminal prosecution with malice.
See id. at 621, 624 (unanswered requests for admission, or untimely and deficient
responses to the same, are deemed admitted under Fed. R. Civ. P. 36(a)(3) and may
be relied on as the basis for granting summary judgment); Pelletier v. Fed. Home
Loan Bank of S.F., 968 F.2d 865, 872 (9th Cir. 1992) (to survive summary
judgment, nonmoving party “ordinarily must furnish affidavits containing
admissible evidence tending to show the existence of a genuine dispute of material
fact”); see also Lacey v. Maricopa County, 693 F.3d 896, 919 (9th Cir. 2012) (en
banc) (elements of malicious prosecution claim under § 1983); Roberts v. McAfee,
Inc., 660 F.3d 1156, 1163 (9th Cir. 2011) (elements of malicious prosecution claim
under California law). Contrary to Mnyandu’s contention, she was not excused
from her obligation to respond to defendants’ requests for admission because the
district court had authorized the parties to conduct discovery. See Fed. R. Civ.
P. 26(d) (prohibiting discovery prior to a Rule 26(f) conference except “when
authorized . . . by court order”).
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The district court did not abuse its discretion in dismissing Mnyandu’s
claims against defendants Colannino and Racowaschi under Federal Rules of Civil
Procedure 37(b)(2) and 41(b) because Mnyandu willfully failed to produce
documents in compliance with the district court’s discovery orders despite
receiving an extension of time and being warned that noncompliance could result
in dismissal. See Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010)
(standard of review and factors for determining whether to dismiss under Rule
41(b)); Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091,
1096-97 (9th Cir. 2007) (standard of review and factors for evaluating terminating
sanctions under Rule 37(b)(2)).
The district court did not abuse its discretion in denying Mnyandu’s motion
for default judgment as a sanction because defendants did not violate any
discovery orders or other court order. See Stars’ Desert Inn Hotel & Country
Club, Inc. v. Hwang, 105 F.3d 521, 524 (9th Cir. 1997) (standard of review).
The district court did not abuse its discretion in denying Mnyandu’s request
for disqualification of Magistrate Judge Mumm because Mnyandu failed to
establish any ground for recusal. See United States v. Sibla, 624 F.2d 864, 868-69
(9th Cir. 1980) (standard of review and circumstances requiring recusal under 28
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U.S.C. § 455).
We reject as without merit Mnyandu’s contention that the magistrate judge
acted without jurisdiction because the magistrate judge had jurisdiction to rule on
all non-dispositive, pretrial matters. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(a).
AFFIRMED.
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